What Is The Procedure For Mutual Divorce?

Mutual consent divorce occurs when both parties agree to end their marriage. It is one of the most popular types of divorce because it saves the parties involved time and money by not extending the process indefinitely. 

Mutual divorce in India is obtained by applying the following provisions:

• Hindus may seek mutual divorce under Section 13B of the Hindu Marriage Act of 1955.
• Christians may seek mutual divorce under the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872.

Mutual divorce process

• Filing a joint petition in family court requires mutual consent or a divorce settlement agreement from both parties. In this petition, the parties specify the time and place of their marriage, the time since they have not lived together, the reasons for their broken marriage, and why they should be divorced. The duration of living separately should not be less than one year, and both parties must sign the petition. Court fees are submitted with the petition.
• The parties' appearance before the court or the first motion. Following the filing of the petition, the parties will appear in court and give their statements. The court will examine the facts stated in the petition as well as the documents attached to it. The court may attempt to reconcile the parties, but if the marriage has broken beyond reasonable limits, the court may proceed with the process. The court may even waive the cooling-off period, which lasts at least six months and up to eighteen months. If the cooling-off period is not waived, the second motion may be filed six months after the petition is presented to the family court and before eighteen months have passed.
• Once the parties appear for the second motion, the final hearing begins. Joint statements are re-recorded, and if the issues of alimony, child custody, and maintenance have been resolved, the court issues a decree of divorce. After the decree is issued, the marriage is dissolved.

Case laws

• In Smruti Pahariya v. Sanjay Pahariya (2009), the Supreme Court ruled that a spouse's failure to appear in court in a mutual consent divorce petition cannot be interpreted as consent after the six-month cooling-off period has expired. The fact that they signed the first motion under Section 13B of the Hindu Marriage Act, 1955, has no bearing on determining their consent in the second motion.
• In Anamika Srivastava v. Anoop Srivastava, (2022), the Allahabad High Court ruled that it is not permissible to force parties to engage in mediation where the marriage has irretrievably broken down, given that the parties have been living separately for eleven years and have appeared before the court's mediation center without being reconciled.
• In Sandhya Sen v. Sanjay Sen (2019), the Chhattisgarh High Court ruled that the existence of a dispute was not a prerequisite for granting divorce by mutual consent because the parties had only lived together for two days after their marriage. The Court ruled that if an application is otherwise properly constituted and presented to the court, it is not the court's responsibility to look for grounds or reasons that compelled the parties to seek divorce by mutual consent. 
• In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court ruled that the cooling-off period in Section 13-B(2) of the Hindu Marriage Act should be interpreted as a guideline rather than a requirement. The parties in this case had been living apart for eight years, so there was no hope of reconciliation.
• In Hitesh Bhatnagar v. Deepa Bhatnagar (2011), the Supreme Court ruled that if the second motion is not heard within eighteen months, the court cannot grant a divorce decree by mutual consent. It also held that either party could withdraw their consent at any time before the decree was issued. In this case, it was determined that unless both parties mutually agree on obtaining a divorce and persuade the court of the same, the court will not grant it.

Divorce by marriage separation agreement is an excellent way to end all of that trauma, and the legislature and judiciary have made the process as simple as possible to assist people in leaving unhappy marriages without adding to their mental stress.

The Sharks of Law educates individuals about legal issues and encourages critical thinking. You can contact our skilled Advocates if you have any legal questions.

Email:-helpdesk@sharksoflaw.com

Help Desk:-+91-88770-01993